Part 3

Confiscation: Scotland

Confiscation orders

Effect of order on court’s other powers
97
1
If the court decides to make a confiscation order it must act as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.
2
The court must take account of the confiscation order before—
a
it imposes a fine on the accused, or
b
it makes an order falling within subsection (3).
3
These orders fall within this subsection—
a
an order involving payment by the accused, other than a compensation order under section 249 of the Procedure Act (compensation orders) , a restitution order or a victim surcharge under section 253F(2) of the Procedure Act;
b
an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);
c
an order under Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture orders);
d
an order under section 23 or 23A of the Terrorism Act 2000 (c. 11) (forfeiture orders).
4
Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the accused.
5
Subsection (6) applies if—
a
a court makes both a confiscation order and a compensation order under section 249 of the Procedure Act against the same person in the same proceedings, and
b
the court believes he will not have sufficient means to satisfy both the orders in full.
6
In such a case the court must direct that so much of the compensation as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.
Words in s. 97(3)(d) inserted (18.6.2009) by Counter-Terrorism Act 2008 (c. 28), s. 100(5), Sch. 3 para. 7(4) (with s. 101(2)); S.I. 2009/1256, art. 2(c)
Words in s. 97(3)(a) inserted (25.11.2019 for specified purposes, 10.2.2021 in so far as not already in force) by Serious Crime Act 2015 (c. 9), ss. 15(1), 88(2)(a); S.S.I. 2019/281, reg. 2; S.S.I. 2020/407, reg. 2(1)(a)
Pt. 3 applied (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), reg. 1(b), Sch. 1 para. 11(5)
Pt. 3 applied (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 6 para. 42(4) (with s. 97); S.I. 2023/1272, reg. 2(a)
Pt. 3 applied (20.12.2023) by National Security Act 2023 (c. 32), s. 100(1), Sch. 6 para. 16(5) (with s. 97); S.I. 2023/1272, reg. 2(a)
Pt. 3 functions of administrator extended (24.2.2003) by Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133), arts. 1, 4(1)(a)
S. 97 in force at 24.3.2003 by S.S.I. 2003/210, art. 2(1)(a)
Pt. 3 applied (3.12.2014) by The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 (S.I. 2014/3141), reg. 1(b), Sch. 1 para. 6(5)
Pt. 3 applied by Terrorism Act 2000 (c. 11), Sch. 8 paras. 17(4A), 34(3A) (as substituted (24.3.2003) by Proceeds of Crime Act 2002 (c. 29), s. 458(1), Sch. 11 para. 39(4)(5); S.S.I. 2003/210, art. 2(1)(b)(2), sch. (with art. 7); S.I. 2003/333, art. 2, Sch.
Pt. 3 applied (12.2.2019 for specified purposes, 13.8.2020 in so far as not already in force) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(1)(g), Sch. 3 para. 39(6) (with s. 25(9)); S.I. 2020/792, reg. 2(g)